(Ebook) Shipping and the Environment Law and Practice 3rd Edition by Colin de la Rue, Charles Anderson, Jonathan Hare ISBN 9780367198282 0367198282

(Ebook) Shipping and the Environment Law and Practice 3rd Edition by Colin de la Rue, Charles Anderson, Jonathan Hare ISBN 9780367198282 0367198282

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ISBN 10: 0367198282
ISBN 13: 9780367198282
Author: Colin de la Rue, Charles Anderson, Jonathan Hare

(Ebook) Shipping and the Environment Law and Practice 3rd Edition Table of contents:

Part I – Introduction: The Environmental Aspects of Shipping

1 The Environmental Aspects of Shipping

Introduction

Modern concerns

Public interest

Role of international law

Framework of international law and practice

Law of the sea

International organisations

International Maritime Organization (IMO)

International Oil Pollution Compensation Funds (IOPC Funds)

Non-governmental organisations

Laws on environmental aspects of shipping

Liability and compensation for pollution and other impacts on the environment

Laws to prevent, reduce and control pollution

Effect of international regimes – general principles

Entry into force

Amendment of international conventions and the tacit acceptance procedure

Differences of effect between treaties and implementing legislation

Interpretation of treaties

Compliance with treaty obligations

Parties involved

Regional, national and other domestic laws

Development of marine environmental laws

From sailing ships to supertankers

Impacts on the environment

Pollution from operational discharges

Pollution caused by maritime accidents

Emergence of the supertanker

Torrey Canyon

Legal problems highlighted by the Torrey Canyon

Other developments

International developments 1967–1978

International response to the Torrey Canyon

TOVALOP and ITOPF

Brussels Conference 1969

Intervention Convention 1969

Civil Liability Convention 1969

The oil industry contribution

CRISTAL

Fund Convention 1971

Limitation of liability regimes

Protection of the environment – international rules and standards

Dumping at sea

Ship safety

COLREGS

SOLAS

Prevention of pollution from ships

MARPOL

Developments in the United States 1967–1978

Reaction to Torrey Canyon and other spills

Federal oil spill legislation

Askew v. American Waterways Operators and the emergence of state pollution laws

Limitation of Liability Act

Ray v. Atlantic Richfield Co. and the limits of state regulation

International developments 1978–1990

Amoco Cadiz

Revision of the Civil Liability and Fund Conventions

The 1984 Protocols

Salvage and the environment

1989 International Convention on Salvage

Law of the sea and protection of the environment

Developments in the United States 1978–1990

Clean Water Act

The Outer Continental Shelf Lands Act amendments

Trans-Alaska Pipeline Authorization Act

Deepwater Port Act

Legislative developments

Exxon Valdez

Oil Pollution Act of 1990

Legislative background

Ramifications of OPA-90

International developments 1990–2000

Measures to prevent pollution and improve maritime safety

Oil spill response and contingency planning

MARPOL amendments

International Safety Management Code

Compensation for oil pollution

1992 Protocols

Major incidents

Criteria for the admissibility of claims

1992 Civil Liability and Fund Conventions

Termination of industry schemes

ITOPF

Compensation for HNS damage and other environmental impacts

Air pollution

Greenhouse gas emissions

Industry developments

Developments in the United States 2000–2010

The Intertanko decision

New Carissa and the risk of pollution from non-tank vessels

Higher limits of liability and the Oil Spill Liability Trust Fund

Terrorism and maritime security

A new chapter in criminal liability: oily water separators

International developments 2000–2010

Erika

EU legislation: Erika I and II

Prestige

Review of international compensation regime

EU legislation: Erika III

New compensation regimes

Bunker pollution

Wreck removal

New regimes to protect the environment

Anti-fouling

Ballast water management

Shipment of waste and recycling of vessels

Compensation for pollution from tankers – Hebei Spirit

Criminal liability and fair treatment of seafarers

Developments in the United States 2010 to present

Deepwater Horizon

Vessel-source pollution

International developments 2010 to present

Compensation for pollution and HNS damage

Salvage and wreck removal

Measures to prevent pollution

Greenhouse gas emissions

Measures for the protection of marine mammals

Vessel strikes

Underwater noise pollution

Polar operations

Maritime security and sanctions

Piracy and other security threats

Cyber risks

Sanctions and political unrest

Ship finance – the Poseidon Principles

Covid-19 pandemic – effect on shipping and incident response

Global issues in a modern age

Part II – Liability and Compensation for Oil Pollution Damage

2 Compensation from the Shipowner under the Civil Liability Convention 1992

Introduction

Scope of application

Geographical scope

Pollution damage

Internal waters and territorial sea

Exclusive economic zone

Preventive measures

Definitions

“Owner”

“Ship”

Consideration of the definition of “ship” by the IOPC Funds

Preparatory works

Meaning of sea-going vessel and seaborne craft

Oil barges

Vessels adapted for the carriage of oil

Combination (oil/bulk/ore) carriers

Unladen vessels

Meaning of “ship capable of carrying oil and other cargoes”

Meaning of “actually carrying oil in bulk as cargo”

Meaning of “any voyage following such carriage”

Meaning of “residues”

Meaning of “unless it is proved”

Vessels carrying cargo other than persistent oil

Vessels used for storage of oil afloat

Vessels used both for storage and for carriage of cargo in maritime transport

State-owned ships

“Oil”

Persistent oil

Oil not “carried on board” as cargo or bunkers

“Pollution damage”

“Incident”

Intervening act or omission

Grave and imminent threat of pollution

Incident involving two or more ships

Strict liability of the shipowner

Exceptions to shipowner’s liability

Exclusions of liability under CLC 92

War risks

Natural phenomenon

Terrorism and other malicious acts

Default in the maintenance of navigational aids

Whether alternative remedy must be available against government authority

Meaning of “maintenance”

Meaning of “navigational aids”

Act or omission of person suffering the damage

Admissibility and assessment of claims

Exclusion of other remedies (“channelling provisions”)

Introduction

Exclusion of claims against the owner otherwise than in accordance with CLC

Exclusion of claims against other parties

Servants or agents

Persons who perform services for the ship

Limits on effect of exclusions

Owner’s rights of recourse unaffected

Conduct barring immunity

Claims for loss or damage other than “pollution damage”

Claims in non-CLC states

Limitation of liability

Introduction

Right of limitation under CLC 92

Claims subject to limitation

Relationship with 1992 Fund Convention

Amount of liability limit

Minimum limit

Calculation of limitation tonnage

Conduct barring right of limitation

Practice in cases involving the 1992 Fund

Constitution of limitation fund

Constitution of fund as condition of limitation

Jurisdiction in which fund is to be constituted

Method of constituting fund

Other conditions of limitation under national law

Conversion into national currency

Interest on limitation fund

Distribution of limitation fund

Payments made prior to distribution of fund

Interim payments

Compensation payments by parties other than the owner or his insurer

Owners’ expenses

Financial security and certification

Time limit for proceedings

Jurisdiction of courts and enforcement of judgments

Jurisdiction

Competent court

Incident affecting more than one state

Incident affecting only CLC states

Incident affecting CLC states and non-CLC states

Incident affecting two states where different versions of CLC are in force

Recognition and enforcement of judgments

General considerations

Mutual recognition and enforcement

Restrictions on arrest or enforcement where limitation fund established

Effect of requirement that owner be entitled to limit liability

3 Compensation from the International Oil Pollution Compensation Funds

Introduction

International Oil Pollution Compensation Fund 1992

Constitution of the fund

Assembly

Administrative Council

Executive Committee

Secretariat

Funding

Information sources

Scope of application

Cases in which the Fund pays compensation

Cases where no liability arises under CLC 92

Pollution from unidentified ship

Shipowner exonerated from liability under CLC 92

Cases where the shipowner is financially incapable of meeting his obligations

Ships outside scope of financial security requirements

Insurance cover and other assets insufficient

Non-compliance with financial security provisions of CLC

Cases where the damage exceeds the shipowner’s liability limit

Owners’ expenses

Cases in which the Fund’s liability is excluded

War risks

State-owned ships

Pollution from sources other than ships

Act or omission of person suffering the damage

Admissibility and assessment of claims

Payment of interest

Limit of Fund’s liability

Limit of compensation payable by the 1992 Fund

Liability limit in case of natural phenomenon

Effect of interest awarded on claims against owner

Effect of interest paid or payable by the Fund

Unit of account and conversion into national currency

Distribution of available compensation

Cases where a distribution is unnecessary or its effect is altered

Agreement of major claimants to “stand last in the queue”

Additional compensation available from other sources

Time limit for proceedings

Introduction

Three-year time limit

Notification to the Fund

Six-year time limit

Claim settlement procedures

Co-operation with shipowners’ liability insurers

Memorandum of Understanding with the International Group of P&I Clubs

Response to incidents and handling of claims

Submission of claims

Determination and settlement of claims against the Fund

Funding of compensation and interim payments

Introduction

Issues affecting interim payments

Risk of overpayment due to compensation limit being exceeded

Implications of interim payments exceeding liabilities to parties paid

Subrogation

Balancing payment between Fund and insurer

Interim Payment Standard Terms

Legal proceedings involving the Fund

Competent court

Extent to which Fund is bound by proceedings against shipowner

Rights of recourse and subrogation

Fund’s rights of recourse and subrogation

Rights of recovery against the owner of the ship and his guarantor

Rights of recovery against third parties

Fund’s subrogation to recovery rights of shipowner

Fund’s subrogation to recovery rights of other parties

Rights of subrogation against the Fund

Insurer of claimant

Claim settlements paid by other parties

Supplementary Fund

Constitution and membership of the Supplementary Fund

Payment of compensation

Legal proceedings and subrogation

Funding

STOPIA and TOPIA

Introduction

STOPIA

TOPIA

Review and amendment of schemes

4 Oil Pollution – the Position in the United States

Introduction

Admiralty jurisdiction

Navigable waters

Admiralty Extension Act

Admiralty tort jurisdiction

The expansion of federal regulatory jurisdiction

The current federal statutory scheme

New York and Other Harbors Deposit of Refuse Prohibition Act of 1888

Rivers and Harbors Act of 1899

Clean Water Act (CWA)

Prohibited discharges

Reporting requirements

Civil penalties

Civil enforcement

Oil Pollution Act of 1990 (OPA-90)

The liability scheme of OPA-90

Vessel

Responsible party

Third parties

Discharge of oil

Navigable waters

Strict liability

Removal costs

Damages

Defenses

Act of God

Act of war

Act of sole-fault third party

Limits of liability

Gross negligence and willful misconduct

Violation of regulation

Failure to report or refusal to cooperate

Contribution and indemnity

The Oil Spill Liability Trust Fund

Claims procedures

Financial responsibility

Jurisdiction and venue

Jury trial

Relationship to other law

Statutes of limitations

Federal maritime law

State oil pollution statutes

Common law theories of recovery

5 Pollution from Offshore Operations and Craft

Introduction

Industry practice

Legal framework

International regimes relating to offshore operations and craft

Safety, security and environmental protection standards

Liability and compensation regimes

CLEE Convention 1977

CMI Draft Convention on Offshore Mobile Craft 1977

Proposed international convention on transboundary oil pollution from offshore activities

Applicability of international conventions relating to ships and operations at sea

Introduction

Safety, security and environmental protection standards

SOLAS and the Convention on Load Lines

MODU Code

MARPOL

Application of regulatory regimes to FPSOs and FSUs – IMO guidance

OPRC – oil pollution emergency plans and reporting of incidents

The LC/LP regime on dumping at sea – decommissioning and dumping of offshore units

Liability and compensation regimes

Civil Liability and Fund Conventions 1992

Bunkers Convention 2001

Wreck Removal Convention 2007

Hazardous and Noxious Substances Convention 2010

Limitation of liability under the LLMC regime

Financial security requirements

Position under national laws

Introduction

Major incidents

Position in the United States

Deepwater Horizon

The explosion and loss of the rig

Investigations

The response to the incident

Spill impacts and damage assessment

Legislative and regulatory response

Civil litigation following the Deepwater Horizon disaster

Position under other national laws

Regulation of standards of safety and environmental protection

Liability for marine environmental claims

Limitation of liability

Voluntary industry arrangements: OPOL

Contractual allocation of liability risks

Introduction

Forms of contract

Governing law and jurisdiction

Typical exclusions, indemnities and other terms relating to environmental risks

Environmental risks

Pollution

Wreck removal

Exceptions from pure knock-for-knock regimes

Restriction to specified types of acts or omissions

Restriction to acts or omissions of specified personnel

Exclusion of consequential loss

Financial limit

Issues relating to exclusions and indemnities

General principles of interpretation

Scope of exclusions and indemnities

Fines, penalties and punitive damages

Exceptions from exclusions and indemnities

Gross negligence

Wilful misconduct

Insurance

6 Pollution from Ships’ Bunkers

Introduction

Compensation under the International Convention on Civil Liability for Bunker Oil Pollution Damage, 2001

Introduction

Geographical scope

Scope of liability

“Ship”

“Bunker oil”

“Incident” and “pollution damage”

Exonerations from liability

Parties liable under the Convention

Liability incurred independently of the Convention

Liability of shipowner

Liability of parties other than the shipowner

Relationship with Civil Liability Convention 1992

Admissibility of claims

Limitation of liability

Introduction

Limitation of bunker pollution claims under LLMC

General considerations

Travaux préparatoires of Bunkers Convention and related sources

Financial security and certification

Time limit for claims

Jurisdiction of courts and enforcement of judgments

Jurisdiction

Recognition and enforcement of judgments

Bunker pollution incidents involving tankers and other vessels constructed or adapted for the carriage of oil

Introduction

Implications

Pollution incidents during bunkering operations

Position in the United States

Limitation of liability

Financial responsibility

Part III – Compensation for Damage by Hazardous and Noxious Substances

7 HNS Damage and the Hazardous and Noxious Substances Convention 2010

Introduction

Background

Adoption of the 1996 HNS Convention

Obstacles to support for the HNS Convention – amendments to facilitate entry into force

The 2010 HNS Protocol

National and regional laws

EU Environmental Liability Directive 2004

Modern developments

HNSC – scope of application

Geographical scope

Definitions

“Hazardous and noxious substances”

“Owner”

“Ship”

“Carriage by sea”

“Damage”

“Incident”

Incident involving two or more ships

Cases excluded from scope of Convention

Excluded claims

Excluded damage

Excluded ships

Relationship with Wreck Removal Convention 2007 (WRC)

HNSC – liability of the shipowner under Chapter II

Exceptions to shipowner’s liability

Full exoneration from liability

Full exoneration where nature of substances unknown

Damage resulting from act or omission of the claimant

Exclusion of other remedies

Limits on effect of exclusions

Limitation of owner’s liability

Amount of liability limit

Conduct barring limitation

Relationship to other limitation funds

Establishment and distribution of limitation fund

Financial security and certification

HNSC – compensation by the HNS Fund under Chapter III

Cases in which the HNS Fund pays compensation

Cases where there is no liability under Chapter II

Unidentified ship

Shipowner exonerated from liability

Cases where the shipowner is financially incapable of meeting his obligations

Cases in which the damage exceeds the owner’s liability limit

Owner’s expenses

Cases in which liability of HNS Fund is excluded

Limit of HNS Fund’s liability

Organization and administration of the HNS Fund

Funding and reporting

General framework

Reporting

Time limit for claims

Jurisdiction of courts and enforcement of judgments

8 HNS Damage – the Position in the United States

Introduction

Claims under the general maritime law

Implied warranty

Negligence

Strict liability and negligence per se

Liability to third parties

Clean Water Act

Comprehensive Environmental Response, Compensation, and Liability Act

General overview

Response actions

Risk assessment

Liability of responsible parties: general

Defenses

Government enforcement actions

Response costs

Private cost recovery actions

Contribution

Damages

Liability of vessel owners and operators

Liability of shippers

CERCLA section 106 orders

Response options to a section 106 administrative order

“Facility” versus “vessel” liability for compliance with administrative orders

The meaning of “sufficient cause”

Administrative orders under the Clean Water Act

Intervention on the High Seas Act

CERCLA administrative record

Judicial review

Relationship to other law

Financial responsibility

Claim provisions

Statute of limitations

Reauthorization and reform

Part IV – Admissibility and Assessment of Claims

9 Claims – General Principles

Introduction

Legal framework

Claims under international compensation regimes

Oil pollution compensation regimes

“Pollution damage”

“Preventive measures”

Hazardous and Noxious Substances Convention 2010

Nairobi Wreck Removal Convention 2007

Claims under domestic laws

Claims for oil pollution removal costs and damages in the United States

Claims under domestic laws in other jurisdictions

Technical considerations

The short- and long-term effects of oil spills

Type of oil spilt

Climate

Other environmental factors

The nature of environmental damage

Technical problems associated with preventive measures, clean-up and restoration

Preventive measures and clean-up

The practicality of restoration

Public perceptions and their effect

Principles relating to the admissibility and assessment of claims

General considerations

Reasons for a uniform system

Role of national courts

Policy considerations

Criteria for the admissibility of claims

Legal status of Funds’ criteria

Significance in practice of Funds’ criteria – Claims Manual and guidelines

Claims Manual for the Bunkers Convention 2001

10 Clean-Up Operations and Other Preventive Measures

Introduction

Position in the United States

Persons entitled to claim costs of clean-up and preventive measures

Position under international compensation regimes

Owners’ expenses

Claims in respect of measures taken by contractors

Claims by volunteers

Position under other laws

The reasonableness of the measures

Operations at sea

Recovery of oil at sea

Dispersants

Shoreline operations

Rehabilitation of wildlife

Measures to prevent or minimize the escape of oil from a ship or wreck

Subsea operations

Law and practice

The cost of the measures

Fixed and additional costs of government and other public bodies

Judicial decisions

Practice of the IOPC Funds

Residual value of equipment or material purchased in response to an incident

Claims for VAT by central governments

Loss or damage caused by clean-up or preventive measures

The purpose of the measures

Position under international oil pollution compensation regimes

Position under the Hazardous and Noxious Substances Convention 2010

Salvage, wreck removal and related measures

Issues involved in determining the purpose of response operations

The effect of the measures

The motives of those taking the measures

Problems caused by difficulty in determining the purpose of response operations

Practice in respect of claims under international compensation regimes

Primary purpose test

Variations on the primary purpose test

Operations involving different measures with distinct purposes

Extra costs of salvage

Dual purpose operations

Practice with respect to operations under modern forms of salvage agreement

Apportionment between pollution prevention and wreck removal

11 Damage to Property

Introduction

Position under oil pollution compensation regimes

Damage caused by contamination

Damage to fishing gear

Damage to fish farms and aquacultural stocks

Damage to ships, boats and port installations

Damage to real property

Damage to desalination plants and power stations

Damage caused by windblown oil spray

Loss of market value

Damage sustained without oil entering the sea

Consequential loss of or damage to property

Loss or damage caused by preventive measures

Other forms of consequential loss or damage

Cleaning versus replacement

Property damage falling outside oil pollution compensation regimes

Damage on board the ship carrying the oil

Damage not caused by contamination

Contamination not caused by escape or discharge of oil

Position under the HNS Convention 2010

12 Economic Loss

Introduction

Outline of problems

Legal framework

Traditional principles

Modern legislation

Statutory compensation and other remedies

Scope of chapter

General principles of national laws governing recovery of economic loss

Position at common law

Position in the United Kingdom

Position in the United States

General principles

Recovery of economic loss at common law in pollution cases

Commercial fishermen

Parties other than commercial fishermen

Position in other common law jurisdictions

Civil law jurisdictions

Position under current federal legislation in the United States

CERCLA

OPA-90

Position under the laws of individual US states

International conventions: general principles

Introduction

Criteria applied by the IOPC Funds

General criteria in relation to claims for economic loss

Cost of measures to prevent or minimize economic loss

Decisions of national courts

Civil law jurisdictions

Common law jurisdictions

Conclusions

International conventions: decisions of IOPC Funds

Introduction

Fishing industry and related claims

Claims by fishermen, fish farms and other aquacultural establishments

Contamination of stocks held in fish farms and similar establishments

Destruction of stocks as a result of government orders or to preserve public confidence

Contamination of wild fish and other seafood

Reduced catches

Ongoing damage to stocks: loss of future income

Interruption of or reduction in fishing or harvesting activities

Interruption resulting from fishing bans or harvesting restrictions

Interruption resulting from contamination of equipment

Interruption resulting from contamination of water supplies

Cessation or reduction of activities for other reasons

“Second degree” fishery claims

Reduced supplies of fish: fish processors, traders, agents and other parties

Reduced demand for goods or services

Repairers and makers of fishing or fish farm equipment

Fish porters

Suppliers of smolt or feed to fish farms

Suppliers of other goods or services

Haulage and transport companies

Loss of market: reduction in prices and/or sales

Marketing campaigns

Claims by or relating to employees

Tourist industry and related claims

Hotels, restaurants, shops and other tourist establishments

Establishments at uncontaminated locations in polluted area

Establishments outside polluted area

Retailers

Operators of facilities on polluted beaches

Travel agents

Tour operators

Suppliers of other goods or services

Ferry operators

Medical practice

“Second degree” tourism claims

Suppliers of goods and services to businesses in the tourist industry

Claims for loss of tax revenue

Tourism promotion campaigns

Purpose of promotional measures

Connection with the incident

Measures to correct inaccurate reporting

Reasonableness of costs

Claims relating to ports and shipping

Losses resulting from delay or business interruption

Owners and charterers of ships

Shore-based businesses

Losses resulting from diversion of shipping

Other claims based on reduction of business

Ferry operators

Other claims for economic loss

Miscellaneous types of claim

Consequential economic loss

Loss of use or enjoyment

Yacht owners’ mooring fees and insurance premium

Angling clubs

Miscellaneous issues

Claims by or relating to employees

Claims by employers

Claims by employees

Claims by public bodies in respect of social security payments

Loss of income from unlicensed activities

Effect of false invoices

13 Damage to Natural Resources and Costs of Restoration

Introduction

Damage to natural resources

Restoration

Technical and policy considerations

Assessment of damage

Valuation of environmental damage

Policy considerations

Position under international conventions

Introduction

Background of claims for environmental damage under CLC 69

Position under modern international regimes

Inadmissible claims

Admissible claims

Loss of profit from impairment of environment

Costs of reinstating the marine environment

Post-incident studies

Claims for environmental damage made independently of compensation regimes

Position in the United States

Position prior to the Clean Water Act

Common law recovery of damages to natural resources by private parties

Nuisance

Trespass

Negligence

Strict liability

Causation and injury

Measure of damages

Common law recovery of damages to natural resources by the states

Federal participation in recovery of natural resource damages prior to the Clean Water Act

Recovery of natural resource damages under the Clean Water Act

Puerto Rico v. S.S. Zoe Colocotroni

Recovery of natural resource damages under CERCLA

Ohio v. U.S. Dep’t of the Interior

Colorado v. U.S. Dep’t of the Interior

Department of the Interior final rules for natural resource damage assessment under CERCLA and the CWA

Preassessment phase

Assessment Plan phase

Type B assessment

Type A assessment

Post-assessment phase

Recovery of natural resource damages under OPA-90

NOAA final rule on natural resource damage assessment under OPA-90

Pre-incident planning

Compliance with other laws

Emergency restoration

Preassessment phase

Participation of responsible party

Administrative record

Restoration Planning Phase

Natural recovery

Standards for assessment procedures

Restoration selection

Scaling

Restoration plans

Regional restoration plans

Restoration implementation phase

Analysis and summary

Appropriate standard of judicial review

Lack of reliable standards

Non-use values

Clean-up versus restoration

Double recovery

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Tags: Colin de la Rue, Charles Anderson, Jonathan Hare, Environment Law, Practice